FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL EDUCATION WELFARE BOARD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation r-066075-ir-08-DI
BACKGROUND:
2. This case concerns an appeal of Rights Commissioners Recommendation r-066075-ir-08-DI. The issue in dispute concerns the status of a former employee of the National Education Welfare Board (NEWB). The Union's position is that the enhanced redundancy terms should be based on a commencement date of 29th September 2003.
Management's position is that the worker was an independent contractor from 2003 until 18th December 2005 and that a contract of employment began from the 19th December 2005. It further contends that it is unable to enhance the terms of the redundancy on the basis of financial restrictions imposed upon it by Department of Finance regulations.
The matter was referred to a RightsCommissioner for investigation and Recommendation. His Recommendation issued on the 22nd April, 2009 and found that the worker's redundancy entitlements should be calculated from his commencement date of 29th September, 2003.
On the 13th May, 2009 the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 5th January, 2010.
UNION'S ARGUMENTS:
3 1 The worker is entitled to redundancy terms from the date of his commencement with the NEWB. He commenced on 29th September, 2003 and ceased on 31st December, 2007. It is unacceptable that he be classed as self employed for part of this period of employment as he carried out similar duties for the entire period. The Union is seeking an enhanced redundancy package for the entire period of the worker's employment.
COMPANY'S ARGUMENTS:
4 1 The worker did not receive a contract of employment until 19th December, 2005. From 29th September, 2003 until 18th December 2005 the worker was employed on a contract "for" service basis. Any redundancy entitlements should be calcuable from 19th December 2005 when the worker began working on a contract "of" service basis.
2 Due to financial restrictions imposed by the Department of Finance, the NEWB is unable to enhance the redundancy package on offer. Concession of the claim would inevitably lead to repercussive claims across the sector.
DECISION:
It is clear that the Claimant provided services to the Board between 2003 and 2007 in his capacity as a worker within the meaning of the Industrial Relations Acts 1946-2004. It is accepted that his employment ceased in circumstances amounting to redundancy.
Having regard to all the cirumstances of the case the Court believes that the Union's claim for an enhanced severance payment is reasonable and ought to be conceded.
The Court believes that the dispute should be resolved by the employer offering and the Union accepting a severence/termination payment in the amount of €21,000, inclusive of statutory redundancy entitlements in full and final settlement of the claim.
Having regard to the financial circumstances of the employer, the parties should co-operate in seeking the funds necessary to implement this Recommendation from the appropriate authority.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
26th January 2010______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.